The Ombudsman's final decision:
Summary: The complainant says a Care Provider wrongly evicted his elderly father from its care home without giving due notice. The Care Provider says the complainant’s father self- discharged, had capacity to do so and that it acted in line with expert advice. The Ombudsman finds the Care Provider caused an injustice to the resident when it failed to provide him with 28 days’ notice to leave the home.
- The complainant, whom I shall refer to as Mr X, says the Care Provider’s Care Home caused an injustice to his father, whom I shall refer to as Mr Y, when it failed to:
- Give proper notice terminating Mr Y’s continued stay at the care home contrary to the Protection from Eviction Act 1977;
- Manage Mr Y’s move from the care home with due concern for Mr Y’s age, ability and wellbeing and to ensure all safeguarding measures were in place;
- Properly liaise with Leicester City Council adult care services and Mr X to ensure Mr Y had a safe and appropriate place to move to when placing him in a taxi on the day of his departure;
- Properly consider the complaint made on Mr Y’s behalf by Mr X.
The Ombudsman’s role and powers
- We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
- If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
How I considered this complaint
- In considering this complaint I have:
- Spoken to Mr X and read the information including transcripts of recordings of telephone conversations and listened to recordings provided by Mr X;
- Put enquiries to the Care Provider and reviewed its response;
- Put third-party enquiries to Leicester City Council for information;
- Researched relevant law and guidance;
- Shared with Mr X and the Council a draft of this decision and reflected on comments received.
What I found
- Under the Mental Capacity Act 2005 and the five key principles set out in the Act, a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
- because he or she makes an unwise decision;
- based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
- before all practicable steps to help the person to make the decision have been taken without success.
- An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:
- Does the person have a general understanding of what decision they need to make and why they need to make it?
- Does the person have a general understanding of the likely effects of making, or not making, this decision?
- Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
- Can the person communicate their decision?
- The appropriate person to assess an individual’s capacity will usually be the person who is directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
- If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection can decide if a person has capacity to make the decision.
- Under the Mental Capacity Act 2005 any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interest. However, where a person has capacity their decision must be respected.
- Under the Protection from Eviction Act 1977 someone occupying a room in a care home may not be evicted without receiving a written notice which gives no less than four weeks from the date on which it is to take effect. (Protection from Eviction Act 1977, S.5)
- The law does not permit a care-home owner to enforce the ending of an occupier’s licence to stay in the home otherwise than through proceedings in the court even where the occupier is in arrears in paying fees. (Protection from Eviction Act 1977, S.3)
- The Competition and Markets Authority has issued advice entitled “UK care home providers for older people – advice on consumer law” which gives examples of care homes infringing Consumer Protection Regulations. The Regulations say service user agreements should always provide at least 28 days’ notice even where there are serious breaches of contract or harmful behaviour.
- The Competition and Markets Authority advices that where a resident is in serious breach of a contract the Care Provider should ensure they give residents and their representatives an opportunity to appeal a decision to end a contract.
- Mr Y moved into the Care Provider’s care home in May 2017 following a period in hospital. Mr Y pays for his own care services. The Care Provider’s terms require payment for services 28 days in advance. The Care Provider says Mr Y refused to sign a formal contract for the Care Provider’s services.
- The Care Provider says Mr Y did not pay for some of the services received. The Care Provider therefore gave him reminders. On 3 July 2017 the Care Provider served a notice on Mr Y terminating his occupation. Sometime afterwards Mr Y paid the outstanding fees. The Care Provider served a second notice on 26 October 2017 but says it did not receive payment. The Care provider served a third notice on 16 November 2017 telling Mr Y he must leave by 15 November 2017 i.e. the day before the Notice is dated. The Care Provider says, Mr Y responded by saying he would leave on 17 November 2017.
- Mr X says the Care Provider failed to issue a valid notice under the Protection from Eviction Act 1977 and therefore Mr Y should not have been asked to leave so quickly. In Mr X’s view had the Care Provider issued a valid notice Mr Y would have had longer to review where he wanted to live, whether he wanted to pay any outstanding charges and arrange a move to another home. Mr X says by encouraging Mr Y to leave at such short notice the Care Provider put him at risk.
- The Care Provider says its staff did not carry out a risk assessment when Mr Y told staff he had decided to leave on 17 November. Instead staff consulted with Leicester City Council (the Council) adult social care service because Mr Y had mental capacity to decide where he wanted to live. The Care Provider’s staff assessed Mr X as fully able to understand the consequences of his decision. Staff say Mr Y told them he would not pay for any other accommodation and that he wanted to go to Mr X’s home.
- In a statement made to Mr X in December 2017, Mr Y said he had recently had a fall and badly injured his right knee. He thought he might need hospital treatment. Mr Y accepted he had not yet paid the next four weeks care charges. Mr Y says he proposed paying for a further two weeks stay as an interim arrangement , but the Care Provider did not accept that proposal. Mr Y says the Care Provider said he had to pay for the four weeks in advance or find somewhere else to go. Mr Y asked what if he went into hospital. Mr Y says the Care Provider told him he must still pay in advance but would receive a refund for any time spent in hospital. Mr Y asked for written confirmation of that assurance, but he says the Care Provider refused to provide it. The Care Provider says its fees are payable regardless of whether a resident is temporarily in hospital. Therefore, the Care Provider says staff would never have given this assurance or confirmed it in writing.
- The Care Provider says staff tried to reach Mr X by telephone on 17 November 2017. In a conversation with the Care Provider’s staff Mr X says he told the Care Provider he could not house Mr Y. Without Mr X consenting to Mr Y being sent to his home, the Care Provider says it called a taxi for Mr Y. The Care Provider says Mr Y directed the taxi to take him to Mr X’s home. Mr Y says the Care Provider told the taxi where to take him. In Mr Y’s statement he says he did not ask the taxi to take him to Mr X’s home but to hospital.
- When Mr Y arrived at Mr X’s home Mr X would not let him in because of previous difficulties he had experienced while Mr Y stayed with him. Mr Y then spent two hours outside Mr X’s home. A concerned neighbour called the Police who in turn called an ambulance resulting in Mr Y’s admission to hospital.
- In both Mr X’s and Mr Y’s view, the Care Provider wrongly ‘evicted’ Mr Y from the care home resulting in his admission to hospital.
- Mr X complains this was irresponsible, contrary to the Care Provider’s duty of care and duty to safeguard an elderly resident to send him to Mr X’s home without his express agreement to receive him.
- The Care Provider says staff contacted the Council’s adult social care safeguarding team to discuss whether the Care Provider could allow Mr Y to leave. The Care Provider says the Council said the Care Provider could not prevent Mr Y leaving because in the Care Provider’s judgement Mr Y:
- Had capacity to make his own decision on where he wanted to live;
- Understood the consequences of that action;
- Had not paid his fees and;
- Had received the appropriate notice.
- Mr Y knew the Care Provider intended to end his placement at the care home;
- The Care Provider had given its reasons for the decision;
- Mr Y left voluntarily before the notice period expired on 18 November 2018.
Analysis – did the care provider cause an injustice?
- The Care Provider says Mr Y did not enter a contract with the Care Provider therefore it did not owe him a duty of care. However, a contract does not have to be in writing. There was an agreement between Mr Y and the Care Provider that it would provide him with services in return for payment. That is a contract. In any event, where a person receives care from a Care Provider the Ombudsman can investigate the Care Provider’s actions regardless of whether a contract exists.
- I consider Mr Y had a licence to occupy a room in the Care Provider’s care home. This is demonstrated by the Care Provider allowing Mr Y to live in its care home, providing services to him and expecting and accepting payment for those services. The Care Provider does not dispute Mr Y stayed at its care home and received services it provided.
- The Ombudsman expects Care Providers to act with due regard to a resident’s safety and check they understand the consequences of any decision they may make.
- It appears that at the relevant time, Mr Y had full capacity to decide where he wished to live. Both the Care Provider and the Council say he had capacity. Mr Y has physical limits on what he can do. However, as far as I am aware, he does not have any medical condition that would impact on his cognitive ability. Mr X does not hold any power of attorney for Mr Y, and Mr Y has not appointed anyone else as his attorney. During Mr Y’s time at the Care Provider’s care home, staff say he presented as having full capacity. At no time has anyone considered him to lack capacity. Mr Y’s mobility issues and age make some tasks difficult - that is why he needs to live within a care home environment receiving support. Mr X believes some of the medical issues affecting Mr Y may affect his capacity.
- I must consider whether the Care Provider properly considered Mr Y’s mental capacity at the relevant time. In my view, it did. A person’s capacity can change and so must be assessed when someone makes each significant decision.
- Having mental capacity means Mr Y knew the Care Provider offered services for which it expected payment. Mr Y did not always pay. The Care Provider says when it served notice for non-payment in July 2017 Mr Y offered to pay and so it did not end the care. The Care Provider therefore believed Mr X knew failing or refusing to pay would result in a short notice period. That does not mean the Care Provider could rely on giving such short notice.
- The notice ending Mr Y’s care service at the care home gave only a few days for him to leave. The service agreement says the Care Provider will usually give 28 days’ notice. This notice does not give that period. The notice given to Mr Y is not a valid notice under the Protection from Eviction Act 1977 or Consumer Protection Regulations. The Ombudsman expects Care Providers to comply with the law. While Mr Y may have received several reminders about non-payment for his care, that did not mean the Care Provider could give him two days’ notice to leave. There is nothing in the law, regulations or guidance which allowed the Care Provider to give such short notice.
- The Care Provider believes Mr Y exercised his right to leave. He may have done so but any decision he made arose from the two days’ notice to leave. The Council had offered to meet Mr Y on the following Monday to discuss alternative arrangements. The Council had recommended the Care Provider seek an opinion on its duty of care. Giving Mr Y only two days’ notice denied him the opportunity of considering if he wanted to meet with the Council’s officers before leaving the care home. Whatever decision Mr Y made he made it under the pressure of having only two days’ notice. Mr Y had a right to 28 days’ notice. Had he received this it would on the balance of probabilities have materially affected his decision about when to leave. I find the Care Provider’s failure to present a proper 28-day notice to Mr Y led him to decide to leave sooner than he needed to. The lack of this notice denied him to time to seek professional advice, obtain the support of Mr X and arrange a move to another home.
- While Mr Y had capacity the Care Provider should have considered consulting Mr X and anyone else with an interest in his welfare. The Consumer and Market’s Authority guidance recommends Care Providers talk with residents and their relatives before asking a resident to leave, whatever the reason for wishing to end the care arrangement.
- To ensure Mr Y received any support he needed the Care Provider’s care home manager sought advice from the Council and the Care Quality Commission. It says following that advice, staff spoke on at least three occasions to Mr Y to ensure he understood the consequences of leaving the care home that day. The Care Provider’s staff tried to contact Mr X and prepare him for Mr Y’s imminent arrival. Staff said they could not stop Mr Y from leaving whenever he wanted or prevent him travelling to Mr X’s home. Staff tried to help Mr Y move out and alerted the Council to the possibility he may leave and have nowhere to stay.
- In deciding to travel to Mr X’s home without first gaining Mr X’s agreement Mr Y made an unwise decision. I recognise the Care Provider took steps to help Mr Y make a more informed decision. However, having given Mr Y such short notice the Care Provider had already denied him time in which to consider the alternatives, and gave itself insufficient time to contact Mr X. The Care Provider did not follow the law or guidance therefore, I find the Care Provider caused Mr X an injustice.
- The Care Provider says it did not need to make a risk assessment because Mr Y had capacity. Mr X’s age and mobility issues could make him vulnerable. So, the Care Provider decided to check with the Council about what to do. The Care Provider took expert advice from the Council before accepting Mr Y had capacity to leave and ordered his taxi for him. If Mr Y believed he may need hospital treatment he had the necessary capacity to direct the taxi driver to take him to the nearest accident and emergency department.
- Care providers must respect a resident’s mental capacity and their right to make unwise decisions, even if those may place someone at risk. They must ensure the resident understands the risk involved and provide advice and support. Mr Y had capacity to make an unwise decision to leave when he did. We will never know whether but for the failure to serve a proper 28 days’ notice Mr Y would have left before that notice in similar circumstances. I find that Mr Y’s decision to leave was, on the balance of probabilities, materially affected by having only two days in which to leave.
- Mr X complained to the Care Provider about these events. However, as Mr Y has capacity the Care Provider first said it could not respond to Mr X’s complaint. Only once Mr Y had given written authority to complain could the Care Provider respond.
- The Care Provider’s staff and the Council’s staff dispute each other’s recollection and interpretation of what each said in the telephone call on 17 November 2018. Whatever staff said in that call, staff dealing with Mr Y face to face believed Mr Y had capacity. It is only if Mr Y lacked capacity that staff would need to make a best interest decision and consult those interested in Mr Y’s welfare.
- Mr X felt under pressure to accept Mr Y on the day he left the care home. Had the Care Provider given Mr Y longer notice staff might have persuaded him to remain safe in the care home until he received advice from Council staff or found alternative accommodation. The Care Provider’s hasty actions led to a lost opportunity for Mr Y and caused unnecessary distress both to him and Mr X.
- Mr X says that under the Equality Act the Care Provider should ensure staff struck a “careful balance between the negative impact of a provision on the disabled person and any lawful reason for applying it.” The Care Provider considered Mr Y’s capacity and his physical disability, including short sightedness. Staff remained with him to help him read and understand the letter. Staff ensured Mr Y had his magnifying glass to hand so he could use that, and they asked him if he understood the letter. I do not see any evidence the Care Provider failed to consider Mr Y’s disability when presenting him with the letter. Whether the Care Provider discriminated against Mr Y can only be definitively decided by the courts.
- To remedy the injustice caused I recommend the Care Provider within one month of my final decision:
- Pays Mr Y £1,000 in recognition of its failure to provide him with appropriate notice and the impact that had on Mr Y’s decision to leave;
- Reviews the notice given to all residents in the care home ensuring improvements in practice for the future;
- Pays Mr X £250 in recognition of the time and inconvenience to which he has been put in following up his complaint;
- Reviews its service agreement to ensure it provides for 28 days’ notice and gives a right of appeal before a resident is made to leave its care home.
- In completing my investigation I find the Care Provider caused an injustice when issuing a notice ending the care for Mr Y.
Investigator's decision on behalf of the Ombudsman